The Commission des relations du travail1 (CRT) recently determined that by, among other things, remaining inflexible on salary issues during the collective bargaining round for the public and parapublic sectors, the Government of Quebec and Monique Jérôme-Forget, as Minister responsible for Government Administration and President of the Treasury Board, had failed to negotiate in good faith.
The collective bargaining round for the public and parapublic sectors unfolded between 2003 and 2004. During the round, monetary issues, mainly salaries, were negotiated at a master bargaining table, while non-monetary clauses were negotiated at 56 sector tables. On a parallel track to this process, the parties carried out the evaluation of jobs to meet the requirements of the Pay Equity Act.2
Based on the state of public finances, in June 2004 the government set a budgetary framework of 12.6% over six years for salary costs, including both salary increases to be negotiated and the pay equity settlement. Various government representatives, including Monique Jérôme-Forget, reiterated this position to the unions and in the media throughout the bargaining process. According to the government, pay equity costs were included because they were paid out of the same fund, although this position did not prevent Ms. Jérôme-Forget from stating during a press conference that [translation] "pay equity is not negotiable. It's a right."
From June 2004 until salary conditions were imposed through the passage of An Act respecting the conditions of employment in the public sector, S.Q., 2005 c. 43 (Bill 43), the government never diverged from its financial framework. It rejected all counter-proposals from the unions, and it has been demonstrated that the person responsible for negotiating for the government was never given a mandate to negotiate an agreement beyond the established financial framework.
Moreover, during a press conference on November 3, 2005, Ms. Jérôme-Forget said that she was [translation] "personally available to meet with the union partners at any time and explore accommodations for a settlement with them, again within the financial framework." After she made this statement, a union representative tried to get an appointment with the minister, but was unsuccessful.
On December 14, 2005, upon learning that a bill was about to be tabled, a group of union representatives contacted the government's chief negotiator, who confirmed the news, adding that no more meetings would be held on salary issues at the master bargaining table because the government had nothing new to offer.
On December 15, 2011, Bill 43 was passed, imposing salary conditions on all employees as well as non-monetary working conditions on employee groups that had not successfully reached an agreement with the government at the sector level.
After Bill 43 was enacted, the unions filed complaints against the government and the Minister responsible for Government Administration and President of the Treasury Board, alleging that the government and the minister had negotiated in bad faith. The government, for its part, filed similar counter-complaints against the unions.
Analysis and decision
From the outset, the CRT felt that the proof on a balance of probabilities demonstrated that the government had failed in its duty to negotiate in good faith by adopting an initial position that it then maintained, without showing any openness, throughout the bargaining process. Supported by case law interpreting the duty to negotiate in good faith, covered by section 53 of Labour Code,3 the CRT felt that this duty required both parties to adopt an attitude demonstrating a real and bona fide effort to reach an agreement.
The evidence submitted to the CRT regarding the government's behaviour revealed the opposite: the government did not intend to negotiate on salaries. The government's intransigence was borne out by, among other things, the fact that the person responsible for negotiations was not given a mandate to negotiate beyond the financial framework and that the chief negotiator refused to meet with union representatives at the master bargaining table, despite the imminent tabling of a special bill, on the grounds that the government had nothing new to offer. As the CRT put it, [translation] "negotiations weren't firm; they were closed." Faced with such a position, the union side could do only one of two things: accept the employer's proposal or have it imposed on them. The CRT also pointed out that Bill 43 could have retroactively relieved the government of its duty to negotiate in good faith, something the lawmakers had not seen fit to provide for.
The CRT set aside the government's argument that it wished to reach an agreement, as expressed publicly by Ms. Jérôme-Forget, as it determined that the constraints of the financial framework had made reaching an agreement impossible.
Furthermore, the CRT felt that the government had also failed in its duty to negotiate in good faith by including the pay equity settlement in the 12.6% budget framework. In fact, the report tabled in the National Assembly by the Minister of Transport in 2006 states that [translate] "pay equity must be kept off the bargaining table; the mechanisms of the Labour Code permitting a power relationship do not apply; and it lies with the Commission de l'équite salariale to settle disputes." According to the CRT, the government failed in this commitment by suggesting that pay equity and salary increases were linked. While not denying that the amounts paid for pay equity and wage increases came from the same fund, the CRT felt that [translation] "linking pay equity to negotiations undermines the process and jeopardizes the existence of pay equity."
The CRT rejected all the government's counter-complaints against the unions, except the one against the Fraternité des constables du contrôle routier du Québec, which bargained in bad faith by systematically refusing to negotiate before knowing the outcome of the job re-evaluation exercise provided for in a letter of agreement.
Lastly, in accordance with the agreement between CRT and the parties, la CRT is holding a hearing during which it will decide on which remedies to order, if any.
With this decision, the CRT reaffirmed the principles developed regarding the duty to negotiate in good faith, but in the specific context of negotiations carried out on a parallel track to the application of the Pay Equity Act. The CRT's finding that the government negotiated in bad faith is not based on the passage of Bill 43, the legality of which is currently being contested by several unions before the higher courts, but rather on the fact that the government adopted a rigid position throughout the bargaining process, while including pay equity, a "non-negotiable" issue.
Although the decision in this case relates to public and parapublic sector negotiations, private sector employers who are getting ready for collective bargaining should still bear the decision in mind when putting together their offers. They need to be skilful and balanced to ensure that they bargain hard, which is entirely acceptable, and not bargain in bad faith, which is not allowed. Moreover, it now seems to be established that including pay equity issues in the collective bargaining process could be a perilous move.
1 Association des juristes de l'État et Syndicat des agents de la paix en services correctionnels du Québec et autres, 2012 QCCRT 0043.
2 R.S.Q., c. E-12.001.
3 R.S..Q., c. C-27.
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